Kiwis reluctant to claim compensation

Far from being quick to claim compensation, Kiwis who are injured during medical care are unlikely to file a claim despite New Zealand’s no-fault ACC system, according to new research.

In a paper published this week in the Medical Journal of Australia, former Harkness Fellow Dr Marie Bismark, now practising in Buddle Findlay’s health law team, reports that fewer than 5 percent of patients who were eligible for medical misadventure compensation actually filed a claim.

The study found that the likelihood of Kiwis seeking compensation under New Zealand’s no-fault ACC system was similar to the level of claims for compensation under the United States court-based system of medical negligence litigation.

Dr Bismark said that widespread problems with medical malpractice litigation in other countries had led to a renewed interest in the New Zealand system, where lawsuits against doctors are essentially barred by the ACC legislation.

Prior to this research, it was widely assumed that claims rates would be much higher in New Zealand, due to the relative ease of making an ACC claim compared with the high costs and relative complexity of filing legal action in a court-based system. However, her research suggested similar rates of claim among eligible patients in New Zealand compared with the United States.

The study found that the elderly, Maori and Pacific patients, and those from socio-economically deprived neighbourhoods were significantly less likely to claim after injuries.

Dr Bismark said that New Zealand’s approach to compensating medical injury had stood the test of time and proven to be popular and affordable.

“However, our findings indicate that it has not averted a well documented shortcoming of the tort system – only a small proportion of patients eligible for compensation after an adverse event actually receive it, and vulnerable subgroups are the most unlikely to claim,” said the report.

She said the findings from New Zealand’s no-fault system were consistent with research from Denmark another country with a no-fault system.

The study compared national data on medical misadventure compensation claims from ACC with data from a review of patient’s medical charts from the NZ Quality of Healthcare Study (NZQHS).

Dr Bismark says that the reasons for the low level of claims remain unclear, but advances three possible reasons. First, patients may not know they are eligible to claim. Second, rather than claiming compensation, injured patients and their families may seek non-monetary forms of accountability, such as an apology, explanation, or an assurance of safer care for future patients through other avenues (including the Health and Disability Commissioner). Third, ACC compensation is relatively modest compared to the damages that can be awarded in the American system system. In part, this is because most treatment costs are already covered by our publicly funded healthcare system.

The study was conducted before the 2005 ACC reforms, which expand entitlement to all patients who had suffered a treatment injury, with no consideration of fault, rarity, or severity of the injury. The new treatment injury criteria, combined with efforts to encourage more open disclosure of adverse events, are expected to lead to higher rates of claim.

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